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Tuesday, September 18, 2018

No Fair Use for Mu(sic)

Posted by
Michael Risch

It's an open secret that musicians will sometimes borrow portions of music or lyrics from prior works. But how much borrowing is too much? One would think that this is the province of fair use, but it turns out not to be the case - at least not in those cases that reach a decision. Edward Lee (Chicago-Kent) has gathered up the music infringement cases and shown that fair use (other than parody) is almost never a defense - not just that defendants lose, but that they don't even raise it most of the time. His article Fair Use Avoidance in Music Cases is forthcoming in the Boston College Law Review, and a draft is available on SSRN. Here's the abstract:

This Article provides the first empirical study of fair use in cases involving musical works. The major finding of the study is surprising: despite the relatively high number of music cases decided under the 1976 Copyright Act, no decisions have recognized non-parody fair use of a musical work to create another musical work, except for a 2017 decision involving the copying of a narration that itself contained no music (and therefore might not even constitute a musical work). Thus far, no decision has held that copying musical notes or elements is fair use. Moreover, very few music cases have even considered fair use. This Article attempts to explain this fair use avoidance and to evaluate its costs and benefits. Whether the lack of a clear precedent recognizing music fair use has harmed the creation of music is inconclusive. A potential problem of “copyright clutter” may arise, however, from the buildup of copyrights to older, unutilized, and underutilized musical works. This copyright clutter may subject short combinations of notes contained in older songs to copyright assertions, particularly after the U.S. Supreme Court’s rejection of laches as a defense to copyright infringement. Such a prospect of copyright clutter makes the need for a clear fair use precedent for musical works more pressing.

The results here are pretty interesting, as I discuss below.

The first takeaway is that defendants almost always win. So while there are a few high profile losses (the ones we teach in school: My Sweet Lord, Love is a Wonderful Thing, Blurred Lines), most of the time the cases settle (Viva la Vida) or the defendant wins (Stairway to Heaven). So, you would think that in the losing cases, the jury must have ignored a clear cut fair use defense...but no. Not one opinion in a plaintiff winning case even discusses fair use. Most don't seem to raise it (Thicke and Williams did not in the Blurred Lines case, for example). And only a few of the defense winning cases mention it, and most either involved parody or did not rule on non-parody. Only one case, for a a capella rap, rejected a non-parody fair use defense. Obviously, there may have been settlements or unchallenged/unappealed jury verdicts in all the other cases where fair use would have been a live issue, but this is unlikely given the inherently debatable nature of fair use.

Why? Why don't musicians raise fair use? Why didn't courts rule on it? This is where the "avoidance" part of the title comes in. The article discusses a variety of theories why litigants and courts may avoid fair use. Just as software companies did not raise patentable subject matter for many years, musicians (and their labels) may rather pay a verdict than set precedent that certain copying is fair use. This is just one suggestion - there are many others in the article and it is well worth a read to explore them all in detail.

This is an interesting article, and I certainly learned something I didn't know before. Every "yeah but probably..." skeptical thought I had was answered, and that's pretty rare. That said, my one critique is that the background section, which is supposed to be discussing why fair use is the type of thing that we should often see in music (see history of borrowing, above), often conflates a variety of other defenses to copying in the same discussion. For example, the article points to the ubiquitous YouTube video that shows how many songs are based on the same four chords. The use of those chords, though, isn't really a fair use; it's more of scenes a faire or other defense to copying. Those four chords, after all, lead to very different sounding songs, and where they do sound the same, they can be traced to a common source, not to each other. An empirical study that I would like to see is how many songs that fit the four chord mold have been accused of and/or held liable for infringement. Perhaps Professor Lee's data has that, for reported decisions at least.

The reason this conflation is problematic leads back to the study results. Perhaps it should not be surprising that so many defendants win outright on non-copying defenses because there are so many ways to win on non-copying defenses without having to resort to an admission of copying and reliance on fair use. It may be that despite a history of borrowing, musicians can tell the difference between illicit copying and either copying from the same source/methods or real fair use. After all, only an average about four cases per year went to decision.